We Ban Lies, To Officials

When I posted before on not seeing why lies should be legal, many complained that laws against lies are impractical. But in fact, it has long been illegal to lie to government officials:

Did you know that it is a crime to tell a lie to the federal government? Even if your lie is oral and not under oath? Even if you have received no warnings of any kind? Even if you are not trying to cheat the government out of money? Even if the government is not actually misled by your falsehood? Well it is.

Title 18, United States Code, Section 1001 makes it a crime to: 1) knowingly and willfully; 2) make any materially false, fictitious or fraudulent statement or representation; 3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. Your lie does not even have to be made directly to an employee of the national government as long as it is “within the jurisdiction” of the ever expanding federal bureaucracy. Though the falsehood must be “material” this requirement is met if the statement has the “natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed.” United States v. Gaudin , 515 U.S. 506, 510 (1995). (In other words, it is not necessary to show that your particular lie ever really influenced anyone.) Although you must know that your statement is false at the time you make it in order to be guilty of this crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is “within the jurisdiction” of a government agency. United States v. Yermian , 468 U.S. 63, 69 (1984). …

Some [Assistant United States Attorneys] specifically send agents out to conduct interviews knowing that a witness will either tell the truth and help build a case against someone else or lie and subject himself to a Section 1001 charge . … You will probably not be shown any of the pertinent documents before the interview begins. You could easily make factual mistakes during your interview. … Your mistakes can easily be interpreted as intentional falsehoods under Section 1001. …

Tell the agent that you have an attorney and that “my attorney will be in contact with you.” … If you are not in custody, your total silence, especially in the face of an accusation, can very possibly be used against you as an adoptive admission under the Federal Rules of Evidence. Your invocation of counsel, however, cannot be used against you at trial. (more)

Rhetorical – I know this is sociologically impossible to enforce, but:

If a politician is making a speech and there are government officials in the crowd who will make decisions based off of the contents of that speech, and later it is demonstrated that the politician knowing made a lie, is it possible for the government official to go after a Section 1001 charge?

wophugus

No. Subsection C of that law says:

“With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to – (1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or (2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.”

wophugus

Nevermind,I totally misread that.

Psychohistorian

“This law may or may not be a good idea, but surely it is feasible.”

For what value of feasible? How many prosecutions are there under this? How many prosecutions are there under this where the crime is as tenuous as your analysis suggests it might be? Is there even a single court decision supporting your interpretation?

I’d be surprised if more than a tiny, tiny fraction of violations of this law are prosecuted. Of those, most are probably pretty clear-cut, they were baldly lying to a government agent in order to get away with something.

What you’ve got is, “Here’s an overly broad law that could in theory maybe be used to prosecute a bunch of lying, assuming the courts didn’t find such an application of it patently unconstitutional.” It’s a pretty big leap from there to, “Our criminal justice system could plausibly investigate and prosecute a non-trivial percentage of instances of lying within reasonable costs and without a complete and total restructuring of the system.”

Why must the system prosecute a non-trivial fraction of violation instances in order for a law to be feasible? I said we could make lying illegal, not that we’d in fact catch most cases.

billb

I think the charge that the law wouldn’t be feasible includes the ideas that it would be, among other things: hard to enforce, unfairly enforced, rarely enforced. You can pass a law making it illegal to eat a ham sandwich at home on a Thursday–you can make just about anything illegal. The objections aren’t that you literally can’t do it, but that it would be wildly ineffective!

Clearly this law against lying to officials is being enforced sometimes, and so does have an effect. So the question becomes whether the net effect is good or bad, not whether the law is feasible.

billb

Let’s avoid the debate about definitions and meaning. I agree: the debate is really about whether the effects of making lying illegal are good or bad. Satisfied? Let’s actually have that debate instead of worrying about whether the law is “feasible.”

Anyone who’s smart, at this point, would never talk to a government official. It’s clear that being caught in a misstatement of fact (knowing or otherwise) can put you at danger, so there’s a strong incentive not to talk to them. This is in tension with the government’s goal in investigating crimes. Witnesses who are unlikely to be the subject of investigations are nonetheless disincintivized from talking with its agents for fear their statements may later be construed as lies. I can’t see how this is helpful.

Durham

Very similar to how celebrity ‘Martha Stewart’ was convicted & imprisoned.

“Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—
Shall be fined under this title or imprisoned not more than 5 years, or both.”

On April 10, 2002, MARTHA STEWART was interviewed by telephone by the SEC, the FBI, and the U.S. Attorney’s Office; in this long informal conversation… she responded to a query– that she did not recall a specific discussion with an associate on 27 December 2001 about ImClone stock sales by another business associate. The government said this trivial statement was “false and misleading” in attempts to conceal her insider-trading … and sent her to a distant prison to contemplate her sin.

Note that the Feds were originally trying to convict Martha on felony ‘insider-trading’ (Securities Fraud), but the judge immediately dismissed that primary charge for total lack of evidence. To save face and punish Martha… the U.S. Attorney vigorously pursued this silly accusation of lying to Federal agents. But even Martha’s cadre of top New York lawyers could not save her from phony Federal prosecution.

Does this mean that lobbiests who lie about global warming (for example) to government officials could be prosecuted under 1001?

Doug S.

They have to *knowingly and willfully* tell such a lie, and that’s hard to prove. For example, tobacco executives can say under oath “I believe that tobacco is not addictive” without risking a perjury trial because even though it _obviously_ is, it’s hard to prove that they haven’t convinced themselves otherwise.

M

This is just an extension of the fact that lies are theoretically verboten in the public sphere generally, as with formal economic transactions. Note that this contradicts your earlier theme that there’s a bias to treat individuals with more respect than faceless institutions – rather, the very different features of such things means that the rules that institutions and individuals come up with to deal with them will be different, sometimes implying (with sufficient decontextualization) that institutions are worthy of more respect and sometimes that individuals are (to the extent that the division makes sense in the first place.)

Andr

It’s definitely a good idea. We can’t be expected to have anything resembling a free and just society if politicians are effectively encouraged to lie to the public. Only cure: Coup D’Etat